| Awon v Harran Transp. Co., Inc. |
| 2010 NY Slip Op 00638 [69 AD3d 889] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Milan K. Awon, Respondent, v Harran Transportation Co.,Inc., et al., Appellants. (Action No. 1.) Claridelia Guillen et al., Plaintiffs, v HarranTransportation Co., Inc., et al., Appellants, and Milan K. Awon, Respondent. (Action No.2.) |
—[*1] Taller & Wizman, P.C., Forest Hills, N.Y. (Y. David Taller and Craig Phemister of counsel),for respondent in action No. 1. Robin, Harris, King & Fodera (Mauro Goldberg & Lilling LLP, Great Neck, N.Y. [MatthewW. Naparty and Richard J. Montes], of counsel), for respondent in action No. 2.
In two related actions, inter alia, to recover damages for personal injuries, which wereconsolidated for trial, the defendants Harran Transportation Co., Inc., and Samuel S. Webbappeal, as limited by their brief, from (1) stated portions of an order of the Supreme Court, KingsCounty (Steinhardt, J.), dated December 11, 2008, and (2) so much of an amended order of thesame court dated January 30, 2009, as denied their separate motions pursuant to CPLR 3126 tostrike the pleadings of Milan K. Awon in actions No. 1 and 2.
Ordered that the appeal from the order is dismissed, as it was superseded by the amendedorder; and it is further,
Ordered that the amended order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The Supreme Court providently exercised its discretion in denying the motions of thedefendants Harran Transportation Co., Inc., and Samuel S. Webb (hereinafter together theappellants) to strike the pleadings of Milan K. Awon in actions No. 1 and 2. A party thatdestroys essential [*2]evidence such that its opponent is"prejudicially bereft of appropriate means to [either present or] confront a claim with incisiveevidence" is subject to severe sanctions (DiDomenico v C & S Aeromatik Supplies, 252AD2d 41, 53 [1998] [internal quotation marks omitted]; see Horace Mann Ins. Co. v E.T.Appliances, 290 AD2d 418 [2002]). As a matter of fairness, this is true even in cases wherethe destruction of the evidence was not willful or contumacious if the other party has beenseverely prejudiced by the destruction (see Neal v Easton Aluminum, Inc., 15 AD3d 459 [2005]). "Wherethe evidence lost is not central to the case or its destruction is not prejudicial, a lesser sanction,or no sanction, may be appropriate" (Klein v Ford Motor Co., 303 AD2d 376, 377[2003]; see Jenkins v Proto Prop.Servs., LLC, 54 AD3d 726 [2008]; Dean v Usine Campagna, 44 AD3d 603 [2007]; De Los Santos v Polanco, 21 AD3d397 [2005]; Deveau v CF Galleriaat White Plains, LP, 18 AD3d 695 [2005]; Lawson v Aspen Ford, Inc., 15 AD3d 628 [2005]; Riley v ISSIntl. Serv. Sys. 304 AD2d 637 [2003]; Favish v Tepler, 294 AD2d 396 [2002]).Here, the appellants failed to show that the sale of Awon's totaled vehicle for scrap severelyprejudiced their ability to defend the two related actions (see Iannucci v Rose, 8 AD3d 437 [2004]). Mastro, J.P., Florio,Balkin and Leventhal, JJ., concur.